David M

It's not a "loophole," and this new phrase everyone is thoughtlessly parroting is already getting tiresome. First, it's not the case that if the victim resists, says no, etc but has consumed alcohol then the perpetrator cannot be charged with rape. To the contrary, he would be chargeable the same way as he would be if she were sober. This is solely about lack of consent alleged based upon intoxication. So the victim agreeing, participating, and/or complying, and then later saying (and perhaps subjectively feeling) she had been too drunk to consent. But the law reasonably prohibits charging with rape in such circumstances. That's because there must be some objective standard by which we can measure the level of intoxication required to negate consent. New York rationally defines that as physical incapacitation (or involuntary ingestion of the substances). If there's no such objective standard, people could be charged with rape for activity they genuinely believed was consensual, because the next day their partner felt s/he was too drunk to consent. Many people can appear relatively sober while actually quite intoxicated. And many people actually want to engage in sexual activity with strangers or their partners when drunk; so permitting prosecutors to charge people simply because their partners concluded in the morning they were too drunk to consent would result in a grossly unfair system and yield absurd results such as both parties potentially being charged with rape.